Archived updates for Monday, October 15, 2007

Sufficient Difference In Detail for No Infringement of European Community Design Registration

According to Emma Barraclough, writing for Managing Intellectual Property Magazine, "IP owners have been given more clarity about the scope of protection available for design rights" after the UK Court of Appeal ruled that there was sufficient difference of detail to find no infringement between the Febreze container Registered Design No. 000097969-0001 (left) and the Air Wick "Odour Stop" container (right) shown below.

The decision reprotedly explains how the courts should assess what constitutes the “overall impression” of a product and who is the “informed user” under the 2002 Regulation on Community Designs.

In reality, even though the same features are found in both, there are clear differences between the two sprayers resulting from the different mode of their execution: the Febreze sprayer is smaller, has a slightly larger diameter and so looks more compact. The head of this sprayer is shallower but also broader, so that the Febreze sprayer fits the hand differently than the Airwick sprayer (with the Airwick sprayer, which has the considerably narrower head, there is a feeling that it could slip out of the user's hand). In contrast to the Airwick sprayer, the metal can of the Febreze sprayer tapers upwards, so that the waist begins lower down than in the Airwick sprayer. The "train" goes down much further in the Febreze sprayer, so that the lower boundary of the plastic part echoes the angle of the head part far more markedly than in the Airwick sprayer. The shape of head too is different: while the head of the Febreze sprayer – to draw a comparison from the animal kingdom – is reminiscent of a snake's head, the shape of the Airwick sprayer head is like a lizard's head.

The similarities between the products are at too general a level for one fairly to say that they would produce on the informed user the same overall impression. On the contrary, that user would get a different overall impression.

Accordingly I would allow the appeal on infringement, but dismiss the appeal on validity.